(Image from the Ottawa Citizen)
I’ve been following, (sporadically and with some limits on how much I can take before I’m either bored to tears or frustrated beyond belief) the inquiry into the government’s invocation of the Emergency Act. Certain impressions come to mind. I was pleasantly surprised by the presence of mind and demeanour of former police chief Peter Sloly. I think he was significantly at fault for what happened, so I’m not planning to give him a free pass. But it was clear that the OPS lawyer was really trying to throw him under the bus, and make him a scapegoat. The lawyer frequently over-stated or misstated Sloly’s testimony. I was impressed with how calmly and resolutely Sloly set the record straight. I also came away with the impression that the convoy organizers were dismayed to find themselves having to defend their conduct in a judicial forum, which might be a good thing in the long run.
But what really caught my attention was the oft-repeated phrase about “our charter rights to protest”. I’m glad we have that right, because the discussions frequently made me want to protest. So, let’s ask ourselves – do we really have a Charter protected right to protest, and if we do, what if anything constrains those rights?
The very first section of the Charter provides limitation. It says “1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (emphasis added). So, if you are going to toot your horn and shout about your right to protest, it is incumbent on you to recognize that that protest right is subject to reasonable limits. You do not have the right to do what you want, when you want.
I’ve read the Charter. I was unable to find the word “protest”. The charter does not explicitly provide the right to protest. It provides, in section 2 of the Charter, the following freedoms: “2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.” The right to protest is built from those freedoms – you can associate with others, you can assemble, and you can express your opinions.
The astute reader will note quickly that the right to assemble is specifically limited to the right to peaceful assembly. Convoy organizers described their assembly as a mid-winter love-in in downtown Ottawa, with cheerful horn tooting to build team spirit. Ottawa residents described it as a hostile invasion of their living space and disruption of their living conditions, and were convinced that it was anything but peaceful.
Since the Charter is a principles document, not rich on implementation details, the precise application of its clauses is being worked out through common law principles – i.e court decisions are gradually defining how it is applied. A Government of Canada page discussing the right to Assembly says the following: “Freedom of peaceful assembly protected under section 2(c) of the Charter has received only limited judicial interpretation”. It then goes on to discuss the developing body of judicial interpretation, and says, among other things “Section 2(c) includes the right to participate in peaceful demonstrations, protests, parades, meetings, picketing and other assemblies….However, it does not protect a particular venue for assembly…Section 2(c) guarantees the right to peaceful assembly; it does not protect riots and gatherings that seriously disturb the peace….It has been stated that the right to freedom of assembly, along with freedom of expression, does not include the right to physically impede or blockade lawful activities”.
I thought those notes were interesting. If the Charter doesn’t protect a particular venue for assembly, I think it would be quite appropriate for Canada to define a zone around Parliament Hill in which protests would not be allowed for security reasons. In fact, one thing the Ottawa protest did was to point out that our security services are rather lax in the lack of controls over access to Government spaces. The attack on Paul Pelosi, the apprehended plot to kidnap the governor of Michigan, the death threat against Chrystia Freeland, and the attempt to crash through barriers to the residence of the Prime Minister are but a few of the incidents that should remind us that violence in thought and deed is becoming a significant and disturbing aspect of political life. Without limiting the right to peaceful protest, we should seriously consider where we think it is appropriate to allow those protests to take place.
Second, the right to peaceful assembly does not include the right to physically impede or blockade lawful activities. Without weighing in on the question of whether the Government was or was not, justified in invoking the Emergency Act, I think it is abundantly obvious that the convoy was physically impeding and blockading lawful activities. I recall early in the days of protest learning of businesses that closed their doors because they felt it wasn’t safe to continue to do business.
The key to limits on the right to peaceful protest isn’t so much the clause that permits limits, it’s the subsequent clause that constrains those limits to be “justifiable in a free and democratic society”. In other words, you aren’t allowed to use a sledge hammer to drive a tack.
The interpretation of what is justifiable has been, in my opinion, fairly liberal. One case found it unreasonable to forbid camping in a public park as part of a protest. Another found that “A police perimeter, including baggage searches, around a public park where demonstrators were gathering to protest a meeting of the G20 was not a justifiable limit in the absence of legal authority to impose and enforce these conditions of entry.” What that suggests is that you might have imposed such a requirement only if you had applied for and obtained a court injunction. Further, measures that were “including a requirement to provide advance notice to police of the time, location and/or route of a demonstration and to not deviate from the notice provided, were not minimally impairing.” And if that requirement is not minimally impairing, as I read it, then you cannot enforce such a requirement.
That last one bothers me. The City of Ottawa has a process to regulate marches and demonstrations within the city, and on Parliament Hill. The process asks for exactly that kind of information, so that police can provide traffic control etc. I find it hard to believe that a court has found it is unreasonable for a city to put some structure and order around a demonstration. That structure has a purpose, and the purpose is to allow the demonstration to proceed while ensuring that it doesn’t negatively impact on others.
There needs to be, I believe, a distinction between the protestors’ right to assemble and to freely express an opinion, and the protestors’ right to force that opinion down your throat. Let’s face it. The objective of many demonstrators is not just to express an opinion. The objective often is to be inconvenient, to be obstructive, to be offensive so that they can impose their will on others. They want to force a government to take actions, to align with their view, and they believe they have a right to be a pain in the ass until they get what they want.
I don’t think that’s what the Charter envisioned. I think a ruling that says that it’s not reasonable in a free and democratic society to ask demonstrators to cooperate with the civil authority to minimize the disruption brought on by their demonstration is a mistake. Sorry, your Honour, but you’re full of crap.
My suggestion is that we amend the Charter, or possibly provide regulations pursuant to the Charter, to clarify exactly what is considered an acceptable demonstration or protest. We should provide a time limit so that we distinguish between a demonstration and an occupation. I think we should make it clear that an occupation is NOT what is protected under the Charter. I think we should understand that there is a tension between the rights of the residents of any municipality and the rights of the demonstrators who wish to educate the residents of that municipality. That tension requires compromise from both parties. So yes, citizen, you have to put up with this disruption for a couple of days. And no, demonstrator, you can’t stay here as long as it suits you. I find it hard to believe that we should have to say this in a Charter way, but we should make it clear that by-laws apply to demonstrators. So no, you can’t make more noise than the by-law allows, and no, you can’t impede normal traffic flow.
I hope that the inquiry into the use of the Emergencies Act is able to identify the threshold at which this event really could be seen to be out of control. I hope that they then recommend actions for government to take that would allow authorities to regulate behaviours so that freedom of expression is respected but controlled. In short, we talk about our charter right to protest. Let’s not leave the definition of that right to the judiciary. Let’s have legislation that clearly defines that right in a way that the majority of people (not right wing “freedom fighters”) would accept.
I’m sorry to have returned to this subject, and I hope I’m not repeating myself and boring you. But honestly, it bugs me to hear irresponsible parties bleating ceaselessly about their charter rights to protest when they mostly haven’t the foggiest idea what they’re talking about.
9 responses to “What Limits Our Right to Protest?”
Dennis, You’ve really hit the nail on the head with this one. There’s a lot blather about “rights” and “inalienable rights”, but reaching back to the caveman, did these ancient men and women have rights? Apart from the problem of not being able to formulate a grunt for “rights”, I don’t think these people had rights, and probably no concept of rights. In our case, we have whatever rights our laws define, and if the Charter doesn’t define them well enough then that’s something the Government should get onto immediately.
As an aside, what happens if the Commission determines that Government did not have sufficient cause to invoke the Emergencies Act?
Terry thanks for the comment. I’m not sure I buy your thesis that the lack of rights for the caveman should act as a reasonable limit on the rights of the modern civilized man. It is things such as the charter of rights that establish that our rights derive from something more than the heft of our cudgel. But yes, it’s important that we define where rights end and licence begins.
Your question on the outcome of the Commission of Inquiry is very intriguing. Personally,I’m more concerned about the right wing rabble than I am about over-reaching government, so I would conclude that if I didn’t have sufficient cause under the Act, then the Act is wrong. And so I would beef up the enabling language in the Act.
“Your rights end where my begin,” I’ve been saying, and that applies here. I think you’ve convincingly laid out as much in your critique. What happened in Ottawa was not a demonstration; it was an occupation, and part of the difference lies in the duration of the action. There are reasonable limits to the right to demonstrate and perhaps we should try to delineate those a little better.
Ed, as always I thank you for your comments. I think we should enshrine and protect the right to protest, but I think we need to ensure that rights and privilege don’t become licence. In my opinion, the best thing that can come out of the last “protest” is a defined set of limits for the next one.
Comment received by email: Dennis; “Thanks I enjoyed the article and agree with your assessment. Not sure about the clarification of terms , as an overarching document it seems right that the charter is a principles document. Isn’t it the laws of the land that need to be clarified or written to define or meet the principles.”
To which I replied “ I’m not sure about the right mechanism for the clarification of terms. However, based somewhat on what I’m witnessing south of the border, I believe it’s dangerous to leave that clarification to the judiciary. Therefore, we need it to come down as a legislated package. It could be regulations pursuant to the charter, or a new Act defining the acceptable conduct of protestors which would be written consistent with the charter….either could work.”
Note that the make-up of the judiciary is an extremely politicized process. I have more confidence in our Canadian bench, although I would quake a bit if Pierre Polieve or his Harper trained deciles held the reins.
Thoughtful article, a little weighty while having breakfast!
I agree about the quality of our judiciary compared to the US. But leaving it to the judiciary to decide what bounds we set as a society is something of an abrogation of legislative duty, isn’t it?
Sorry about your brekkie!
Dennis, I found very little to disagree with in your excellent article. Have you thought of trying to find the best representatives of the involved interest groups and actually sending them a copy of your thoughts? !
No, I can’t say I’ve considered that road. I don’t think I can influence the nutbar fringe very much. But maybe I can influence the discussions on how we deal with our nutbar fringe people.